86 Miss. 412 | Miss. | 1905
delivered the opinion of the court.
The charges requested for defendant below (appellant here), which proceed upon the assumption that the burden of proof
The plaintiff, after having testified in her own behalf, was recalled and questioned touching a conversation with W. J. Foster, a witness for defendant, some days before trial, at plaintiff’s home. Foster was the clerk in defendant's store who was showing plaintiff the bookcases at the time she fell into the elevator opening, and had testified that he called plaintiff’s attention to the opening a few moments before she fell. Plaintiff was asked by her counsel: “When Mr. Foster came down to see you, as a part of the conversation he had with you, did you say to him that you heard that they intended to say that you were warned about that place?” This was objected to, and objection sustained. She was then asked: “As a part of that conversation, did you say to him that you had not been warned?” This question was objected to, objection overruled, and defendant excepted. Plaintiff replied: “I looked him right in the face most impressively, and said it very slowly, ‘I hear your people say that I was warned; I wasn’t warned;’ and he said nothing.” There is no ground upon which this testimony was admissible. It is clearly nothing but hearsay, and not within any of the exceptions to the rule which excludes hearsay evidence. It is true that when Foster was on the stand a predicate was laid for contradicting him upon this point. But the rule is well established that a witness may not, on cross-examination, be questioned as to collateral and irrelevant matters with a view to self-contradiction of his answer. In such cases the cross-examiner is bound by his answer. The
This evidence must have been highly prejudicial to defendant. For the error of the court in admitting it, the judgment must be reversed.
Reversed and remanded.